* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 7 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-4090

v. (D. Utah) TOMAS EDWARD ELROD,

Defendant - Appellant. (D.C. No. 96-CV-343 G)

ORDER AND JUDGMENT *

Before ANDERSON , HENRY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because petitioner filed his § 2255 motion in the district court on April 17, 1996,

prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, a certificate of appealability is not required. SeeUnited States v. Kunzman , No. 96-1310, 1997 WL 602507, at *3 n.2 (10th Cir. Oct. 1, 1997).

2Petitioner was also charged in a separate indictment with one count of possession of a controlled substance with the intent to distribute in violation of 21 U.S.C. § 841(a). Petitioner pled guilty to this charge as well and is currently serving time in the custody of the California State Penal System. -2- Tomas Edward Elrod appeals from the district court’ s dismissal of his 28 U.S.C. § 2255 petition to vacate, set aside, or cor rect an illegal sentence. We affirm the district court’s dismissal of the petiti on. 1 Petitioner pleaded guilty to one count of conspirac y to manufacture methamphetamine in violation of 21 U.S.C. § 846 and one count of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). 2 In the original judgment entered in July 1989, th e district court sentenced petitioner to 114 months’ imprisonm ent; a modified judgment was entered in June 1993. In April 1996, petitioner filed in district court h is § 2255 motion asking the court to vacate his sentence for the offense of usi ng or carrying a firearm in relation to a drug trafficking offense, asserting t hat his conviction is now improper based on the Supreme Court’s ruling in Bai ley v. United States , 116 S. Ct. 501 (1995). In particular, petitioner argued t hat the Court’s more narrow interpretation of the “use” prong of § 924(c) shoul d apply equally to the “carry”3 In fact, although petitioner asserts that the “use” analysis applied by the Supreme (continued...) -3- prong, thus invalidating his guilty plea. The U.S. Magistrate Judge issued his Report and Recommendation in January 1997, recommen ding the petition be denied. In June 1997, the district court approved the recommendation of the magistrate and denied petitioner’s § 2255 motion. Because petitioner was convicted pursuant to a guil ty plea rather than a jury trial, we must only “‘mak[e] such inquiry as shall satisfy [us] that there is a factual basis for the plea.’” United States v. Bar nhardt , 93 F.3d 706, 709 (10th Cir. 1996) (quoting Fed. R. Crim. P. 11(f)). Accor dingly, the determination of petitioner’s motion depends on whether there is an adequate factual basis for his guilty plea. Id. at 709-10; United States v. Ruth , 100 F.3d 111, 112 (10th Cir. 1996). “The acceptance of a guilty plea is deemed a factua l finding that there is an adequate factual basis for the plea.” Therefore, our review is under the clearly erroneous standard, and a finding of fact is not clearly erroneous unless it is without factu al support in the record or, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made. Barnhardt , 93 F.3d at 710 (citations omitted). Although Baileyeffectively overruled our prior cases relating to the “use” prong of § 924(c), there is “nothing in Bailey that conflicts with our pre-Bailey ‘vehicular carrying’ line of cases. 3 United States v. Miller , 84 F.3d 1244, 12593 (...continued)

Court in Baileyshould be applied equally to the “carry” prong of § 924(c), it is clear that this is not what the Court intended. As the Court stated, “Congress used two terms [i.e., “uses” and “carries”] because it intended each term to have a particular, nonsuperfluous meaning.” Bailey , 116 S. Ct. at 507.

4 We acknowledge that petitioner and the government disagree over whether the firearm was found in an unlocked suitcase behind the passenger seat or in the bed of his truck. Respondent’s Br. at 2. However, we do not find this disagreement significant. -4- (10th Cir.) cert. denied , 117 S. Ct. 443 (1996), and overruled on other gro unds by United States v. Holland , 116 F.3d 1353 (10th Cir. 1997). As such, our pre

Baileycarrying cases, holding that the government is req uired to prove “only that the defendant transported a firearm in a vehicle an d that he had actual or constructive possession of the firearm while doing so,” are still valid. Miller , 84 F.3d at 1259; see also United States v. Richardson , 86 F.3d 1537, 1548 (10th Cir. 1996) (“A conviction under the ‘carry’ prong of sec tion 924(c)(1) requires possession of the firearm through dominion and cont rol, and transportation or movement of the weapon.”). In this case, although petitioner did not “use” the firearm as Baileydefines “use” in terms of § 924(c), it is clear th at petitioner carried a firearm. He admitted at the time of his arrest that he had a firearm in his vehicle, and a 9mm pistol was subsequently found al ong with other drug paraphernalia. 4 Petitioner’s Br. at 4; Respondent’s Br. at 2. Be cause we find that petitioner’s conduct meets the definition of “carry ” under § 924(c), we conclude5Petitioner also argues that there is insufficient evidence that he used or carried a

firearm “during and in relation to” the drug offense as that phrase was interpreted by the Supreme Court in Smith v. United States , 508 U.S. 223 (1993). Petitioner’s Br. at 10-11. To the extent that our pre-Smithand pre-Baileycases presume a connection between guns and drug trafficking if the defendant had access to a weapon during a drug offense, petitioner urges that these precedents be overruled. Petitioner’s Br. at 11 n.6; see, e.g. , United States v. Coslet , 987 F.2d 1493, 1495 (10th Cir. 1993). We disagree, and conclude that there has been no change in the law with respect to that portion of the statute. SeeUnited States v. Holland , 116 F.3d 1353, 1359 (10th Cir. 1997) (stating that the “‘during and in relation to’ element was not affected by the holding in Bailey”). The law was, and still is, that the firearm must have some purpose or effect with respect to the drug trafficking crime and that the gun must at least facilitate or have the potential of facilitating the drug trafficking offense. Smith , 508 U.S. at 237-38. That standard is met here. -5- that he has suffered no prejudice from the change i n the law with respect to “use” and that there is an adequate factual basis for his plea. 5
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge